A large swath of criminal law deals with a single concept: possession. Almost every criminal case that involves a controlled substance or firearm will come do to whether the accused possessed contraband. What is possession? Generally there are two forms of possession, physical and constructive. Physical possession is an easy concept-the contraband was in the hands, pocket, wallet, or waistband of the accused. Cases built on physical possession are hard to beat.

However, in many cases the government proves possession through circumstantial evidence that shows an accused was in constructive possession of contraband. The government can prove constructive possession where circumstances support an inference that a person exercised or intended on exercising control over the contraband, the person had access to the contraband, and the person knew of the contraband. Notice, the government does not need to prove the accused owned the contraband – only that accused could control it.

Mere presence or proximity to contraband does not equal possession. The government must show the above control, access, and knowledge of the contraband. How does the government show this? By the facts surrounding the case. A recent Texas state decision cited by a Wisconsin Appellate court provided a list of seventeen different factors that could be used to prove or disprove constructive possession.[1]

If you are facing a possession of a controlled substance, felon in possession of a firearm, or other possession-based case, you need an attorney who will identify and argue the factual circumstances to disprove you had possession over the contraband attributed to you.

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